Earl B. Burgess v. Vivian Davison, et al--Appeal from 136th District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-283 CV
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EARL B. BURGESS, Appellant
V.
VIVIAN DAVISON, ET AL., Appellees
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D 161,765
MEMORANDUM OPINION (1)

We received notice of appeal filed June 20, 2003. We notified the parties that the notice of appeal did not appear to have been timely filed. We received a response from the appellant, Earl B. Burgess, who is an inmate confined in the Mark W. Stiles Unit of the Texas Department of Criminal Justice, Institutional Division. The Attorney General's Office provided the Court with the prison mailroom log entries for the appellant's incoming and outgoing mail during the pertinent time period.

The judgment was signed on March 5, 2003. The appellant claims that he submitted a motion for new trial on April 3, 2003, and mailed a copy of the motion to the attorney for the appellees. According to the prison mailroom logs, however, the motion was mailed on April 9, 2003, 35 days after judgment. The document was not deposited in the mail on or before the last day for filing. See Tex. R. Civ. P. 5. The motion for new trial was filed with the district clerk on April 10, 2003, more than 30 days after judgment and too late to extend the appellate timetable. See Tex. R. Civ. P. 329b(a); Tex. R. App. P. 26.1. Therefore, the notice of appeal was due to be filed on April 4, 2003, not June 3, 2003. Although the appellant claims that he placed the notice of appeal in the prison mail system on June 17, 2003, the prison mailroom logs and the U.S. Mail postmark demonstrate that the motion was actually mailed on June 19, 2003. The notice of appeal was filed on June 20, 2003.

The appellant failed to file notice of appeal within the time for perfecting appeal, and further failed to file notice of appeal within the time permitted for an extension of time to file notice of appeal. See Tex. R. App. P. 26.3. The appellant did not file a motion for extension of time with this Court and did not perfect a restricted appeal. Our appellate jurisdiction has not been invoked.

It is, therefore, ORDERED that this appeal be DISMISSED for lack of jurisdiction. APPEAL DISMISSED.

PER CURIAM

Opinion Delivered November 6, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.